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Providing gender justice in India needs a robust involvement of all stakeholders

In India, the principle of gender equality has been enshrined in its Constitution, the very document that provides the basis and guidance for governance in a democracy. In this sense, gender justice in India is inextricable from the workings of the democratic principles we have adopted. The inclusion of gender justice – equality before the law, enfranchisement, positive discrimination for neutralizing social and economic inequity – among other things made the Indian Constitution, as Uday S. Mehta writes in his essay ‘Constitutionalism’, in many ways a revolutionary document (Mehta U., 2011. Constitutionalism, edited by Niraja Gopal Jayal and Pratap Bhanu Mehta. Oxford Companion to Politics in India, Oxford University Press, pp 15-27). In democracies that were established before India gained independence, women for a long time did not have the power to vote. In the United States of America and the United Kingdom, women gained the vote in 1920 and 1918 respectively, more than a century after the first election in the US and two centuries in the UK. This also provided a strong basis for enacting legislation for enabling gender justice in India

While we are still a long way from achieving what can be termed as ‘equality’ in the sphere of gender, the fact that the Constitution provided a foundational basis to the idea of gender justice in India has helped us sustain a struggle for levelling the field en masse and has paved the way for enactment of legislations that were passed in the years following 1950.

The Constitutional Provisions that provide for gender justice in India include Articles 14, 15, 16, 39, and 42. The details are as follows. Article 14 provides for equality before the law, or for the equal protection of laws. The equality provided herein is therefore two pronged: equality before the law means that the State shall not discriminate between two citizens – every person is the same in the eyes of the law. On the other hand, equal protection of laws enables the State to undertake positive discrimination in order to bring all citizens on an equal footing. It gives the State freedom to make special provisions for disadvantaged sections of the society, which includes affirmative action and special status for women etc.

Article 15 (1) explicitly prohibits any discrimination on the basis of sex; it states, ‘The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.’ This does not prevent the State from taking affirmative action in favor of women. Under Article 15(3), the State is provided with the power to make special provision for women and children.

Article 16 provides for equality of opportunity of all in matters relating to public employment or appointment to any office; it specifically forbids discrimination on the grounds of sex. Article 16 (2) reads: ‘No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect or, any employment or office under the State.’

Article 39 provides for securing the right to an equal means of livelihood for both men and women and that both men and women have the right to equal pay.

Article 42 provides for securing just and humane conditions of work and for maternity relief.

In order to meet the Constitutional Mandates, the Indian State has in the years following Independence enacted various laws that provide for equal rights, help counter the results that have arisen from social discrimination and provide support to women.

While there are various crimes defined under the Indian Penal Code, 1860 (IPC) of which both men and women can be victims (robbery, theft, murder, etc.), but there are a few crimes which fall under the category of crimes against women, defined under the Indian Penal Code (IPC), 1860:

There are also numerous legislations that have specific provisions to address women and their interests thereby providing a strong legislative basis for gender justice in India. These are:

The Employees State Insurance (ESI) Act, 1948: The objective of the Act is to provide for certain benefits to employees in case of sickness, maternity and employment injury. The Act is applicable to all factories (this includes factories owned by the Government) and any other establishment to which an appropriate government may extend the provisions of the Act, after giving one month’s notice. The Employee State Insurance (ESI) Corporation was established under this Act. Section 46 of the Act, which covers the benefits for employees, has provided for periodical payments to an insured woman in case of confinement or miscarriage or sickness arising out of pregnancy, confinement or premature birth of child. The word confinement has been defined under the Act as ‘labour resulting in the issue of a living child, or labour after twenty-six weeks of pregnancy resulting in the issue of a child whether alive or dead.’

The Maternity Benefit Act (MB Act), 1961: The 1961 Act was amended by the Maternity Benefit (Amendment) Act, 2016, the amendments coming into effect from 1st April 2017. While the benefits of the ESI Act are available to insured women earning up to INR 21,000 per month, the MB Act applies to every woman employed in factories, mines, shops, commercial establishments that employ ten or more employees. There is no wage threshold under the MB Act.

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013: As discussed above, the Constitution has enshrined the principles of gender justice in India under various Articles. Workplace sexual harassment was first recognized by the Indian Legislature in the case of Vishaka v. State of Rajasthan, in which the Supreme Court framed certain guidelines, called the Vishaka Guidelines and issued directions to the Union of India to enact a law for combating sexual harassment at workplaces. Since a specific law on sexual harassment did not exist at the time of passing of the judgement, the Supreme Court formulated the Vishaka guidelines wherein employers were mandatorily directed to provide a mechanism to address and resolve complaints relating to sexual harassment at workplaces. Sixteen years following the judgement, an Act was brought into effect in accordance with the Supreme Court guidelines. The objective of the Act is to provide protection against sexual harassment of women at workplaces and for the prevention and redressal of sexual harassment and for matters connected therewith or incidental thereto. The definition of ‘sexual harassment’ as provided under the Act falls within the definition in the Vishaka judgement. Sexual harassment, as defined under Section (2)(n) of the The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, includes: (i) physical contact and advances, (ii) demand or request for sexual favours, (iii) making sexually coloured remarks, (iv) showing pornography, or (v) any other unwelcome physical, verbal or non-verbal conduct of a sexual nature. Interference with work or creating a hostile work environment, implied or explicit promise of preferential or treatment in employment and/or implied or explicit threat about present or future employment status, if accompanied with or connected to any act of sexual harassment may also amount to sexual harassment. Sexual harassment, as defined under the Act, is wide enough to cover implied and direct sexual conduct; such conduct means physical, verbal and written conduct. The Act requires an employer to set up an Internal Complaints Committee (ICC) at each branch or office with ten on more employees. The ICC is to be composed of a minimum of two employees; external members are to be from non-governmental organisations or association committed to the cause of women. No less than half of the members are to be women. It is also required to set up a local complaints committee (LCC) to address complaints from women employed in organizations without an ICC owing to a workplace having less than ten employeesor when the complaint is against an employer. In cases where a complaint is received, the Committee has to follow up and complete an inquiry within a time period of 90 days. Upon completion of inquiry, the report is to be sent to employer or District Officer, as the case may be. They are required to take action on the report within 60 days of receiving it. There are penalties provided under the Act where an employer can be punished with a fine of up to INR 50,000 for non-compliance with the provisions of the Act.

Women’s Reservation Bill: The Women’s Reservation Bill is a pending bill which has sought to amend the Constitution of India to reserve thirty-three percent (one-third) of the total seats in Lok Sabha-the Lower House of Parliament and all state legislative assemblies for women. One third of the total number of the seats reserved for Schedule Tribes and Scheduled Castes are to be reserved for women of those groups in the Lok Sabha and legislative assemblies. The bill was passed by the Rajya Sabha on 9 March 2010. If passed by the Lok Sabha, the Act that will thereby come into force will be a momumental document for gender justice in India.

The Criminal Law Amendment Ordinance, 2018: This ordinance provides the death penalty for rape of girls below 12 years of age. It amends the Indian Penal Code, Code of Criminal Procedure, Indian Evidence Act, and Protection of Children from Sexual Offences Act. The salient features of this ordinance are: minimum punishment of ten years for rape, minimum punishment of twenty years if the victim is a woman below sixteen years of age and minimum twenty years of rigorous imprisonment, extendable to life imprisonment or the death penalty if the victim is a girl aged below twelve. The ordinance also provides for disposing rape cases within six months.

The Transgender Person’s (Protection of Rights) Bill, 2016: With a view to extend the scope of gender justice in India, this Bill was listed for passage during the 2016 winter session of Parliament, but is yet to be enacted. Transgender persons have been provided with recognition and anti-discriminatory rights. Certain entitlements vis-à-vis education and health have been introduced. There is a provision for self-perceived gender identity under Section 4 of the Bill; under Section 4, a person who identifies as one may file an application to a District Magistrate for issuing a certificate of identity as a transgender person. The basis of the rights of transgender persons has been drawn from the Supreme Court judgement in National Legal Services Authority (NALSA) vs Union of India¸ where it was held that gender identity is integral to the personality of a transgender person and one of the most basic aspects of self-determination, dignity, and freedom that has been guaranteed under the Constitution of India. The Court had also directed the Centre and State governments to take steps to treat transgender people as socially and educationally backward classes of citizens and extend all kinds of reservation in cases of admission to educational institutions and for public appointments. Section 9 of the proposed Bill directs the appropriate governments to take measures as may be necessary to protect the rights and interests of the transgender persons and to take steps to ensure their inclusion in society. However, the Bill has been vehemently criticized as not meeting the needs required by transgender person and not recognizing the definitions of gender authority in the NALSA judgement. While the Supreme Court defined the right to identify oneself as a transgender person on the basis of ‘self-identification as male, female or third gender’, the Bill defines transgender persons as ‘neither wholly male nor female’, ‘a combination of female or male’ and ‘neither female nor male’. Section 5 of the bill proposes the formation of a Committee that sends recommendations to the District Magistrate who issues an identity certificate indicating changes in gender on the basis of the recommendations received. Transgender committees have pointed out that this contradicts the rights granted under the NALSA judgement, which stressed on the principle of ‘self-identification’, and instead runs the risk of introducing medical and psychological intervention and taking away from individuals the right to determine their own identity.

There are several laws which are inhibitive to the cause of gender justice in India, among which is Section 9 of the Hindu Marriage Act, which provides for the restitution of conjugal rights. According to Section 9, when a husband or wife has withdrawn from the society of the other, the aggrieved party may apply by way of a petition to the district court for restitution of conjugal rights and the Court, if satisfied of the truth of statements made in the petition, may grant for restitution of conjugal rights. While the provision was struck down by the Andhra Pradesh High Court as unconstitutional on the grounds that it involved State interference with a woman’s decision not to have sexual relations with her husband, or not to have a child, it was later struck down by the Delhi High Court and the Supreme Court. The courts held that one cannot introduce Constitutional Law into the realm of the household and that the provision ‘serves a social purpose as an aid to the prevention of break-up of marriage.’ Following the judgement in Puttuswamy vs Union of India, where the Right to Privacy was declared to be a Fundamental Right, the Delhi High Court has issued a notice to the Centre to declare the provision as ‘unconstitutional, null, and void.’

The presence of legislation, however, does not imply a consistent implementation, or a levelling of the massive inequalities that still exist. The crimes against women committed at the hourly rate have gone from 21 in 2007 to 39 in 2016 (National Crime Records Bureau, 2016). . Of these ‘cruelty by husband or relatives’ was the most reported crime, accounting for 33 per cent of total crimes, while rape accounted for 11 per cent. While the conviction rate in 2007 was 30 per cent, the same went down to 18.9 per cent in 201 the lowest in a decade. It is therefore imperative for the State and civil society to collectively play a proactive role for meeting the requirements of gender justice in India.